INTERIGHTS Bulletin

W
200 INTERIGHTS Bulletin
Volume 16 Number 4 2011
and disease will have the effect of
discouraging other persons with TB
and other infectious diseases (such as
HIV/AIDS) from being tested. 38
Conclusion
The power to detain individuals to
protect the general public from health
risks is open to abuse particularly
because it is a popular response to
health emergencies allowing politicians
and civil servants to portray
themselves as taking public health
seriously. Society must take care that
this power is used only in the most
extreme cases. It is for this reason that
human rights law must be given
prominence in the development of any
public health policy. While the
Government of Kenya has emphasised
the importance of patient rights it
continues to rely on outdated and
draconian powers of detention. There
is a promise that the Government will
implement community-based directly
observed therapies for TB patients with
isolation in pressure controlled wards
in specialised hospitals only being
used for exceptional cases. However,
while the hospitals remain unfinished
and TB patients continue to struggle
with poverty and lack of social support
there is a risk that detention will
continue to be used in violation of the
rights to liberty, freedom of movement
and dignity protected under the
Kenyan Constitution. Detention
should be a last resort to control
MDRTB but, in Kenya, it is
unfortunately too easy for public
health officials to obtain an order for
the prolonged detention of TB patients
in open prisons, where they are
subjected to life threatening conditions
and where they may spread the disease
to vulnerable prisoners.
Solomon Sacco is a lawyer at
INTERIGHTS, Allan Maleche is a
lawyer at the Kenya Legal & Ethical
Issues Network on HIV/AIDS and
Omwanza Ombati is a lawyer at
Nchogu, Omwanza & Nyasimi
Advocates.
1 Clinicians distinguish between extremely drug resistant
and multidrug resistant Tuberculosis (XDRTB and
MDRTB respectively) but the distinction, although relevant
to the clinical determination of which patients
should be isolated, does not affect relevant human rights
argument and therefore will be ignored for the purposes
of this paper.
2 Article 43 of the Constitution. See also Article 12 of the
International Covenant on Economic, Social and
Cultural Rights also ratified by Kenya.
3 The right to freedom of movement in the ICCPR may
be subjected to limitations ‘provided by law,…necessary
to protect national security, public order (ordre public),
public health or morals or the rights and freedoms of
others, and…consistent with the other rights…’ The
right to liberty under Article 9 of the ICCPR does not
contain an overt limitation clause but reference to ‘arbitrary’
detention has been interpreted to include the
power to impose limitations. See Kenneth Davidson
Tillman v Australia, Communication No. 1635/2007,
U.N. Doc. CCPR/C/98/D/1635/2007 (2010). The
Committee has emphasised however, that non-arbitrary
is not be equated with ‘within the law’ and must be
‘interpreted more broadly to include such elements as
inappropriateness and injustice. Furthermore, remand
in custody could be considered arbitrary if it is not necessary
in all the circumstances of the case, for example to
prevent flight or interference with evidence: the element
of proportionality becomes relevant in this context.’ See
A v Australia, Communication No. 560/1993, U.N. Doc.
CCPR/C/59/D/560/1993 (30 April 1997) and Hugo van
Alphen v The Netherlands, Communication No.
305/1988, U.N. Doc. CCPR/C/39/D/305/1988 (1990).
While the African Charter does not contain a general
limitation clause the African Commission on Human
and Peoples’ Rights has held that s 27(2) serves this
purpose. See Communications 105/93-128/94-130/94-
152/96: Media Rights Agenda, Constitutional Rights
Project, Media Rights Agenda and Constitutional Rights
Project / Nigeria, the Commission explained the circumstances
under which limitations of the rights will be
permissible: ‘68. The only legitimate reasons for limitations
to the rights and freedoms of the African Charter
are found in Article 27.2, that is, that the rights of the
Charter "shall be exercised with due regard to the rights
of others, collective security, morality and common
interest.” 69. The reasons for possible limitations must
be founded in a legitimate State interest and the evils of
limitations of rights must be strictly proportionate with
and absolutely necessary for the advantages which are to
be obtained. 70. Even more important, a limitation may
never have as a consequence that the right itself
becomes illusory.’
4 WHO, Guidelines for the programmatic management
of drug-resistant tuberculosis Emergency update
2008 (2008 WHO Guidelines). See also the United
Nations Economic and Social Council UN Sub-
Commission on Prevention of Discrimination and
Protection of Minorities, The Siracusa Principles on the
Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights,
U.N. Doc. E/CN.4/1985/4.
5 Enhorn v Sweden (Application no. 56529/00).
6 Ibid.
7 See for example S. v H. S. E. & Ors [2009] IEHC 106,
an Irish case relating to the implementation of Article 38
of the Public Health Act, 1947 which allows two public
health officers to order the detention of an infectious
person if certain procedural protections were met. The
case confirmed that forcible detention of a patient with
MDRTB was acceptable in certain circumstances to
protect the public from infection.
8 Supra note 4, paragraph 15.2.1.
9 WHO, Guidance on ethics of tuberculosis prevention,
care and control, 1 December 2010 (the 2010 WHO
Guidelines). The 2008 WHO Guidelines (supra note 4)
also refer in paragraph 19.7 to the fact that ‘forcibly isolating
people with DR-TB must be used only as the last
possible resort when all other means have failed, and
only as a temporary measure.’
10 Ibid., p. 7.
11 See J. J. Amon, F. Girard and S. Keshavjee,
‘Limitations on human rights in the context of drugresistant
tuberculosis: A reply to Boggio et al’, Health
and Human Rights, 7 October 2009. The paper
describes in detail the successes in implementing a
home based care approach in Lesotho, a country facing a
level of XDRTB and MDRTB similar to South Africa,
while having a markedly lower GDP per capita than
Kenya. It appears from their article and sources cited
therein, including WHO guidelines, that home based
care is the preferable strategy for medium and low
income countries.
12 It appears that coercive isolation has been successful,
particularly in the US, in reducing non-compliance and
reducing infection rates. See W. J. Burman, et al, ‘Shortterm
Incarceration for the Management of
Noncompliance With Tuberculosis Treatment’, CHEST
1997;112;57-62 CHEST 1997;112;57-62. However, it
appears that coercive detention in the US has generally
been adopted, at least since 1992, as a last resort, with
emphasis placed on directly observed therapy and that
in fact the number of patients coercively isolated was
quite low [Denver (20 patients detained from 1984 to
1994) Massachusetts (166 patients from 1990 to 1995),
California (67 patients in 1994 and 1995), and New York
City (46 patients in 1993 and 1994) New York’s report
was preliminary; the city has detained more than 250
patients since 1993], see B. H Lerner, ‘Catching Patients:
Tuberculosis and Detention in the 1990s’ CHEST
January 1999 vol. 115 no. 1 236-241.
13 Supra note 9, p. 23.
14 An example of the importance of such warnings can
be found in S. v H. S. E. & Ors (supra note 7). One of the
factors determinative of whether the state had acted lawfully
by ordering the patient’s coercive isolation in
hospital was that the medical officers had attempted
directly observed therapy at her home and had repeatedly
informed her of their powers under s 38 and she had
still refused to abide by her treatment regime. It can be
argued that even where there is no statutory provision
requiring pre-detention warning in practice it will be an
unreasonable limitation of the individual’s rights to
detain her without first warning her of the consequences
of her actions.
15 WHO, Guidelines for the programmatic management
of drug-resistant tuberculosis Emergency update
2008, para. 19.7.
16 For a more detailed human rights critique of the
powers in ss 37 and 38 see J. Coker, ‘The law, human
rights, and the detention of individuals with tuberculosis
in England and Wales’, Journal of Public Health
Medicine Vol. 22 No. 3 pp 263 – 267. See also A. Harris
and R. Martin, ‘The exercise of public health powers in
an era of human rights: The particular problems of
tuberculosis’, Public Health 188 (2004), pp. 313–322.
17 Other states have varying rules and regulations,
which while similar may have stronger or weaker protection
of the rights of the individuals to movement and
liberty.
18 New South Wales Government Policy Directive,
Tuberculosis Management of People Knowingly
Placing Others at Risk of Infection – Guidelines, 25
January 2005, accessible at .
19 Ibid.
20 W. E. Parmet, ‘Legal Power and Legal Rights —
Isolation and Quarantine in the Case of Drug-Resistant
Tuberculosis’, N Engl J Med 2007; 357:433-435, 2 August
2007.
21 Ibid.
22 B. H. Lerner, ‘Catching Patients: Tuberculosis and
Detention in the 1990s’, CHEST January 1999 vol. 115
no. 1 236-241.
23 Lerner, ibid., and T Oscherwitz, et al, ‘Detention of
Persistently Nonadherent Patients With Tuberculosis’,
JAMA, 1997;278(10):843-846.
24 Supra note 7.
Endnotes continued on page 187